Citation Nr: 0713741
Decision Date: 05/09/07 Archive Date: 05/17/07
DOCKET NO. 98-18 897 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
INTRODUCTION
The veteran had essentially continuous active military
service from December 1958 to October 1980. He died in March
1993. The appellant is his widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1998 rating decision by the
Department of Veterans Affairs (VA) Winston-Salem, North
Carolina Regional Office (RO). In an April 2003 decision the
Board denied the claim on the merits. The appellant
appealed.
In an October 2006 memorandum decision the United States
Court of Appeals for Veterans Claims (Court) set aside the
April 2003 Board decision, and remanded the matter for
proceedings consistent with their decision.
REMAND
According to the veteran's death certificate, he died in
March 1993 due to carcinomatosis-rule out pancreas-rule out
lung, due to or as a consequence of malnourishment, due to or
as a consequence of dementia. Pancreatic adenocarcinoma
leading to congestive heart failure was identified as the
cause of death on the veteran's autopsy report.
In March 2002, the RO requested a medical opinion regarding
"whether it is at least as likely as not that the
symptoms/conditions the veteran was treated for in [] service
contributed substantially and materially; that (they)
combined to cause death; or that they aided and lent
assistance to the production of death." The RO noted that
service medical records appeared to show possible in-service
treatment for symptoms substantially similar to those shown
in the months prior to the veteran's death.
In response John C. Mueller, M.D., a VA physician working at
the Winston Salem Outpatient Clinic provided a medical
opinion. Unfortunately, he did not address the veteran's in-
service treatment for gastrointestinal problems and weight
loss, nor the veteran's weight loss in the month before his
death. In light of the death certificate's reference to
malnutrition and the analysis set forth in the October 2006
Court decision, an adequate review of the evidence requires
that a reviewing physician consider the veteran's in-service
weight loss and gastrointestinal symptoms in connection with
his weight loss during the month prior to his demise and the
subsequent cause of death.
Therefore, this case is REMANDED for the following action:
1. The RO must then send the appellant a
corrective VCAA notice under 38 U.S.C.A.
§ 5103(a) (West 2002) and 38 C.F.R. §
3.159(b) (2006), that includes an
explanation as to the information or
evidence needed to establish an effective
date for the claim on appeal, as outlined
by the United States Court of Appeals for
Veterans Claims (Court) in Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
2. The RO must invite the appellant to
submit any additional evidence which she
has yet to submit which she believes
would be pertinent to her claim of
entitlement to service connection for the
cause of the veteran's death.
3. The RO should then forward the claims
folder to a board certified
gastroenterologist. Following the
gastroenterologist's review of all of the
evidence of record, to specifically
include service medical records which
appear to show possible in-service
treatment for symptoms substantially
similar to those shown in the months
prior to the veteran's death, as well as
any medical records which pertain to the
veteran's nutritional status. Then, in
light of all of the evidence of record,
to include the death certificate's
reference to malnutrition, the examiner
must prepare a report which specifically
addresses the veteran's in service
treatment for gastrointestinal problems
and weight loss, as well as his weight
loss in the month before his death.
Thereafter, the examiner must address
whether it is at least as likely as not
that the symptoms/conditions the veteran
was treated for in service contributed
substantially and materially to death;
that they combined to cause death; or
that they aided and lent assistance to
the production of death. If any opinion
cannot be provided without resort to
speculation that fact must be reported,
and an explanation provided. A complete
rationale must be provided for any
opinion offered.
4. Thereafter, the RO must ensure that
the requested action has been
accomplished (to the extent possible) in
compliance with this REMAND. If the
ordered action is determined to have not
been undertaken or to have been taken in
a deficient manner, the RO must take
appropriate corrective action.
5. Then, the RO should review any
additional evidence and readjudicate the
appellant's claim under all appropriate
statutory and regulatory provisions and
legal theories. If the benefit sought on
appeal remains denied, she and her
representative must be provided a
supplemental statement of the case.
The purpose of this REMAND is to ensure due process. The
Board does not intimate any opinion as to the merits of the
case, either favorable or unfavorable, at this time. No
action is required of the appellant until he is notified.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).